GENERAL TERMS AND CONDITIONS PRODIAG BV

The General Terms and Conditions for Consumers can be found on first half of the page

The General Terms and Conditions for Customers (business, companies etc.) can be found on second half of this page

GENERAL TERMS AND CONDITIONS FOR CONSUMERS PRODIAG BV

1. Definitions

Consumer:      the natural person, not acting in the exercise of a profession or business, who purchases certain Products from ProDiag;

ProDiag:          ProDiag B.V., having its registered office and principal place of business in (3741 BD) Baarn, at Zandvoortweg 185, registered in the Commercial Register of the Chamber of Commerce under number 32096014;

Offer:               Any offer made by ProDiag to supply Products;

Force majeure: a situation as referred to in article 6 of these terms and conditions;

Product(s):      the products and/or services to be delivered by ProDiag to the Consumer, including product documentation, instructions for use and packaging;

Website:          the website of ProDiag, https://www.prodiag.nl

2. General

  1. These general terms and conditions exclusively apply to every Offer and all agreements under the terms of which ProDiag delivers Products to Consumers.
  2. The term “in writing” with respect to communication between ProDiag and Consumer also includes electronic communication.
  3. ProDiag is entitled to engage third parties for the execution of the agreement.
  4. Without ProDiag’s prior consent, the Consumer may not transfer any rights or obligations under the contract concluded between the parties to a third party. This clause has effect under property law.

3. Conclusion of the Agreement

  1. All ProDiag offers are without obligation. After acceptance by the Consumer, ProDiag is entitled to revoke the Offer within five working days.
  2. An agreement is formed upon ProDiag’s written confirmation the of Consumer’s acceptance of an Offer or by ProDiag’s actual (commencement of) delivery of the Products to the Consumer.
  3. If an acceptance of an Offer deviates from an Offer, on minor points or otherwise, ProDiag shall not be bound by this deviation and no agreement shall be formed unless the deviation is explicitly accepted by ProDiag. If performance of the agreement should nevertheless commence, the Offer is binding with respect to the agreements made.
  4. The Offer contains a complete and accurate description of the Products offered. The description is sufficiently detailed to allow a proper assessment of the Offer by the Consumer. Pictures, if any, provide a faithful representation.
  5. The Consumer may and shall (in each case) examine the Products for their suitability for the Consumer’s intended purposes. The actual application and use of the Products are entirely at the expense and risk of the Consumer.
  6. The Consumer cannot rely on obvious typesetting, programming or program errors in/on the Website.
  7. As long as the order has not yet been sent, the order can be cancelled by the Consumer. Consumers must give immediate notification thereof by e-mail and/or telephone.

4. Prices and rates

  1. All prices and rates are in EURO, excluding VAT and excluding shipping costs, unless explicitly agreed otherwise. The shipping costs will be made known prior to the final order.
  2. If the prices and/or rates of price-determining factors, such as wages, materials, exchange rate differences, transport costs, import duties or insurance rates, undergo an increase for any reason whatsoever, ProDiag will be entitled to change the agreed price accordingly at any time.

5. Delivery time and deadlines

  1. Articles ordered via the Website are in stock, unless indicated otherwise. ProDiag shall endeavour to dispatch an order placed on a working day before 12:00 noon that same day. For orders placed between Friday 12:00 noon and Monday 12:00 noon, ProDiag will do its utmost to ship the order on Monday.
  2. If a Product is (temporarily) sold out, the Consumer will be informed of this as soon as possible and offered the opportunity to wait until the Product is once again available. If the Consumer fails to respond or does not want to wait, the agreement will be terminated by ProDiag and any purchase price already paid will be refunded to the Consumer within thirty days.
  3. Delivery periods and other deadlines will commence on the first working day after conclusion of the contract and will be based on the information known at the time of conclusion of the contract and on the prevailing circumstances.
  4. Stated or agreed delivery periods and other periods are approximate and must never be construed to be a deadline.
  5. Delivery deadlines and other deadlines will be extended by the time the performance of the agreement is delayed due to Force Majeure, circumstances other than those known to ProDiag, failure to pay or suspension by ProDiag of its obligations.

6. Force Majeure

  1. If ProDiag is prevented from (further) performance of the agreement due to Force Majeure of a permanent or temporary nature, irrespective of whether the Force Majeure could have been foreseen, ProDiag will be entitled, without any obligation to pay damages, to suspend (further) performance of the agreement in whole or in part or, at ProDiag’s discretion, to terminate the agreement in whole or in part by giving written notice to that effect without judicial intervention. Termination does not affect ProDiag’s right to payment by the Consumer for performances already delivered by ProDiag and ProDiag cannot be held liable for compensation in this situation.
  2. ProDiag shall inform Consumer as soon as possible of the Force Majeure. In the event of suspension, as referred to in Article 6.1, ProDiag will still be entitled at a later time to terminate the agreement in whole or in part.
  3. Force Majeure includes all circumstances as a result of which ProDiag is temporarily or permanently unable to fulfil its obligations, such as fire, frost, strike or lock-out, riots, war, government measures, default of suppliers, electricity failures, computer, telephone and internet failures, theft or misappropriation of stocks and furthermore all circumstances where ProDiag cannot reasonably be expected to fulfil its obligations vis-à-vis the Consumer (any further). Force Majeure on the part of ProDiag’s suppliers is also deemed to be force majeure on the part of ProDiag.
  4. If the Force Majeure on the part of ProDiag lasts longer than thirty days, the Consumer is authorised to terminate the part of the contract that cannot be performed by means of a written statement.

7. Delivery, transport, risk

  1. Delivery will take place at the address in the Netherlands indicated by the Consumer. The Products shall be at ProDiag’s expense and risk until the moment of delivery to the Consumer.
  2. ProDiag shall send the following information to the Consumer, at the latest upon delivery of the Products:
    • Visiting address of ProDiag;
    • Method of submitting complaints by the Consumer;
    • The manner in which and the conditions under which use can be made of the right of withdrawal (see below, Article 9);
    • The model withdrawal form.

8. Accepting Delivery

  1. The Consumer has an obligation to cooperate with the delivery, and to take delivery of the Products.
  2. If Consumer fails to take delivery of the Products, ProDiag reserves the right to charge any related costs (including storage and transport costs) to the Consumer.
  3. A delivery will be deemed to have been refused if an attempt is made to deliver the Products ordered but delivery proves impossible. Providing an incorrect or incomplete address is at the expense and risk of the Consumer. The day on which acceptance is refused will be deemed to be the day of delivery.

9. Right of withdrawal / cooling-off period

  1. During the fourteen-day cooling-off period, the Consumer may terminate the contract for the purchase of the Products without giving reasons.
  2. To do so, the Consumer must return the model form to ProDiag within the cooling-off period or make it unambiguously clear in some other way that he wishes to terminate the purchase agreement. Upon receipt of the model form or the unambiguous statement, ProDiag will confirm that contract has been terminated.
  3. The aforementioned cooling-off period commences on the day after the Consumer has received the Products. If the Consumer has designated a third party, not being the carrier, to be the recipient, receipt by this third party will be decisive.
  4. If Consumer has ordered multiple Products that are delivered in multiple deliveries, the cooling-off period will not start until the Consumer has received the last delivery or, if applicable, the last delivery has been received by a third party other than the carrier designated by Consumer in advance.
  5. During the cooling-off period, the Consumer has an obligation to handle the product and the packaging with care. He may only unpack or use the Products to the extent necessary to determine the nature, characteristics, and operation of the product, as he would do in a shop. If the Consumer unpacks or uses the Products beyond what is allowed or damages the Products or their packaging, Consumer will be liable for any decrease in value of the Products.
  6. If the Products are hygiene products, these Products may not be removed from their sealed packaging due to hygiene regulations. Any unpacked hygiene products returned to ProDiag will be destroyed, and they will not be credited.
  7. The Consumer must return the Products with all accessories and in the original packaging, accompanied by a copy of the invoice, to ProDiag as soon as possible but at the latest within fourteen days after he has indicated that he wishes to terminate the agreement. The decisive factor is whether the Consumer has actually offered or handed the shipment over to a parcel delivery company within the cooling-off period. ProDiag reserves the right to give concrete instructions for returning the Products.
  8. The costs of returning the Products shall be borne by the Consumer. This is also stated in the Offer, on the Website, and in the order confirmation. The Consumer must ensure that the package is adequately franked.
  9. Upon receipt of the returned Products by ProDiag, ProDiag will refund the full purchase price, including standard shipping costs, to the Consumer within fourteen days. Repayment will be made in the same currency and by the same means of payment.
  10. If the Consumer fails to comply with the conditions set out in this Article, the contract cannot be terminated and the purchase price will not be refunded.

10. Complaints

  1. The Consumer no longer has the right to invoke a performance defect if the Consumer does not complain about it in writing within a reasonable period of time after the Consumer has discovered or should reasonably have been able to discover the defect.
  2. The complaint must be accompanied by all relevant information to enable ProDiag to investigate the complaint properly, such as the date of delivery, the address where the Products were delivered, a detailed description and the grounds for the complaint, and any relevant visual materials. The Consumer also has an obligation to keep any defective parts and return them to ProDiag immediately upon request.

11. Warranty and Consumer Claims

  1. With due observance of the provisions elsewhere in these terms and conditions and with the exception of products with a shorter shelf life, ProDiag guarantees the soundness of the Products it has delivered for a period of six months after delivery. This means that ProDiag guarantees that the Products meet the technical specifications stated in the contract or the Offer.
  2. ProDiag does not in any way guarantee that the Products it sells are suitable for the Consumer’s intended use of the Products. It is up to the Consumer to investigate whether the Products to be purchased are suitable for the Consumer’s intended purposes and use thereof prior to concluding the Agreement.
  3. In the event of faulty performance, a choice will be made, in consultation with the Consumer, between resending the Products, completing the delivery or crediting the Consumer for a proportionate part of the purchase price.
  4. If redelivery of the performance is opted for, ProDiag will determine the manner and time of delivery. The Consumer shall return defective Products to ProDiag immediately upon request and in accordance with ProDiag’s instructions.
  5. In the event of a warranty claim, the Consumer shall retain the obligation to accept delivery of and pay for any other Products ordered. A (justified) guarantee claim does not confer a right of termination.
  6. ProDiag’s warranty obligations under this article do not in any case apply if:
    • a defect results from the fact that ProDiag has received incomplete or incorrect information with regard to the performance of the relevant agreement;
    • the defect results from the fact that the Consumer uses the Products in a manner other than in accordance with the agreed or usual purpose of the Products;
    • changes or repairs have been made to the Products without the prior written consent of ProDiag;
    • the delivered Products have been damaged by external causes;
    • the Consumer does not fulfil, or has not fulfilled in a timely manner, any obligations vis-à-vis ProDiag arising from the underlying contract.
  7. Transport costs for redelivery of the Products shall be at ProDiag’s expense and risk.
  8. For goods ProDiag that procures from third parties, its obligations vis-à-vis the Consumer are never greater or longer in duration than the (guarantee) obligations of those third parties vis-à-vis ProDiag.

12. Liability and indemnity

  1. Any claim for compensation vis-à-vis ProDiag, except a claim which has been acknowledged by ProDiag, lapses one year after the day on which the Consumer became aware of the damage and ProDiag’s liability.
  2. The Consumer shall indemnify ProDiag for all forms of liability and for all costs and damage incurred by ProDiag and third parties in connection with the use of the Products in any other way than in accordance with the agreed or customary use of the Products.
  3. ProDiag is in no way liable for any damage if and to the extent that it arises from failure to comply with directions/instructions provided by ProDiag or failure by the Consumer or third parties to comply with the use, control and/or maintenance requirements of the Products.

13. Safety measures and recalls

  1. The Consumer has an obligation to immediately cooperate with (measures related to) safety warnings, safety checks, and replacement of the Products for safety reasons.
  2. The Consumer also has an obligation to cooperate immediately with a Product recall initiated by ProDiag.
  3. Any damage or costs incurred by the Consumer in connection with the provisions of this Article will be compensated up to the amount of the invoice value of the Products originally delivered or, as the case may be, the Products recalled, as charged by ProDiag. No loss of turnover or profit on the part of the Consumer will be compensated.

14. Intellectual Property

  1. The Consumer is not allowed to copy, store, publish, reproduce or otherwise use text and/or image materials from the Website without the explicit permission of ProDiag.
  2. The Consumer is not allowed to remove or alter (quality) marks of any kind, such as CE marking, trade names, patents or other rights arising from the Products supplied by ProDiag.
  3. The Consumer shall not remove or render invisible or illegible any identifying marks affixed to the Products, either in whole or in part.

15. Invoicing and payment

  1. In the event of an order placed via the Website, the purchase price must be paid in advance by means of one of the payment options available on the Website. You may choose to pay in advance by bank transfer or iDEAL  or afterwards by credit card. We accept MasterCard and Visa. The credit card will not be charged until the package has been shipped.
  2. If payment in advance is chosen, the agreement is concluded under the resolutive condition of receipt of payment. This means that the order will not be dispatched until payment has been received by ProDiag. If payment is not received within seven days, the Consumer will be sent a reminder. If payment is again not received within seven days, ProDiag is entitled to terminate the agreement with immediate effect. When paying by bank transfer, the Consumer must clearly state the order number with the payment, taking heed of the time that the banks will need to process the transfer.
  3. In all other cases, the Consumer must pay the total amount stated on the invoice, including VAT, within 14 days of the invoice date at the latest.
  4. Net payment must be made to the ProDiag bank account designated by ProDiag. The value date indicated on ProDiag’s bank statements will be regarded as the day of payment.
  5. If the Consumer has not paid the full amount owed within the agreed payment term, and the Consumer has been sent a reminder by ProDiag subject to a payment term of fourteen days, the Consumer will be in default by operation of law. From the day that the Consumer is in default until the day of full payment, the Consumer must pay statutory interest as referred to in Article 6:119 of the Dutch Civil Code. In addition, the Consumer will be required to pay extrajudicial collection costs in accordance with the graduated scale of the decreepertaining to the Dutch Extrajudicial Collection Costs Act (Wet normering buitengerechtelijke incassokosten).
  6. ProDiag is entitled to invoice agreements that are performed in separate consignments per consignment.
  7. Incoming payments will always first serve to settle judicial and extrajudicial costs, penalties, and interest, and then to settle the oldest outstanding accounts with ProDiag, irrespective of any other instructions on the part of the Consumer.

16. Retention of title

  1. The Products delivered by ProDiag remain its property until the moment the Consumer has fulfilled all its obligations under the agreement, including claims based on breach of contract (such as interest, costs, and penalties), all this as referred to in Article 3:92 of the Dutch Civil Code.
  2. With regard to all Products subject to ProDiag’s retention of title, the Consumer has an obligation to exercise the due care customary in society, to provide ProDiag with access to these goods, and to inform ProDiag immediately in writing of any third-party action which is or may be related to the delivered Products in a manner detrimental to ProDiag.
  3. ProDiag is entitled to repossess or have repossessed Products delivered to the Consumer that remain the property of ProDiag in the event that the Consumer fails to fulfil his obligations or ProDiag has reason to believe that the Consumer will not fulfil his payment obligations. The Consumer has an obligation to facilitate this repossession. The costs associated with repossessing the products shall be borne by the Consumer. If Products are repossessed, the Consumer will be credited on the basis of the invoice value or, in the event of damage to the Products, on the basis of their fair market value.
  4. The Consumer has an obligation to alert third parties (such as trustees and distraint collectors who claim any rights in respect of the Products to  which ProDiag retains title) to ProDiag’s retention of title. The Consumer must inform ProDiag hereof immediately in the aforementioned case in writing, by letter and by e-mail.

17. Attributable failure and termination of the contract by ProDiag

  1. The Consumer is deemed to be in default by operation of law and the Consumer’s (remaining) debt to ProDiag will be immediately due and payable in the event that:
    • the Consumer files for bankruptcy, is declared bankrupt, files for a suspension of payments or applies for debt restructuring under the Debt Restructuring (Natural Persons) Act ; or
    • the Consumer dies; or
    • the Consumer does not fulfil or does not fully fulfil any obligations vis-à-vis ProDiag by force of law or contractual conditions; or
    • the Consumer fails to pay an invoice amount due to ProDiag within the period of fourteen days stated in the reminder; or
    • all or part of the assets of the Consumer are seized; or
    • a situation comparable to those listed at  a through e arises under the laws of the Consumer’s country of residence.
  2. In the situations described in Article 17.1, ProDiag will be entitled to suspend its obligations or to terminate the agreement in whole or in part with immediate effect without judicial intervention, all this without prejudice to ProDiag’s other rights, such as rights to penalties already due, interest, and the right to compensation.
  3. ProDiag shall not have an obligation to pay any compensation to the Consumer in the event of termination  of the agreement in accordance with the provisions of this Article.
  4. Upon termination of the agreement, provisions that by their nature are meant to continue will remain in force.
  5. In the event of termination, ProDiag is entitled to repossess the Products, free of all rights of the Consumer. In such a case, ProDiag and its authorised representative(s) are entitled to enter the grounds/premises of the Consumer in order to take possession of the Products. The Consumer has an obligation to cooperate and to take the necessary measures to enable ProDiag to enforce its rights.

18. Applicable law and competent court

  1. All agreements concluded between the parties are governed by Dutch law.
  2. The Vienna Convention on Contracts for the International Sale of Goods does not apply.
  3. Any disputes in connection with or arising from an agreement will be submitted, in first instance, to the court which is competent under Dutch law to take cognisance of the dispute.

***

Drawn up on 26 March 2020

Annex I – information on the right of withdrawal

Information regarding withdrawal from the contract.

You may, during a cooling-off period of fourteen days, counting from the receipt of the Products, terminate the agreement without giving reasons by returning the model form to ProDiag within this period or by making it unambiguously clear in some other way that you wish to terminate the purchase agreement. Upon receipt of the model form or the unambiguous statement ProDiag, will confirm that the contract has been terminated.

You have an obligation to handle the Product and its packaging with care during the cooling-off period. You may only unpack or use the Products to the extent necessary to determine the nature, characteristics and operation of the product, as you would in a retail shop. If you unpack or use the Products beyond what is allowed or damage the Products or their packaging, you will be liable for any decrease in value of the Products. If the Products are hygiene products, these Products may not be removed from their sealed packaging due to hygiene regulations.

You must return the Products with all accessories and in the original packaging, accompanied by a copy of the invoice, to ProDiag as soon as possible but at the latest within fourteen days after you have indicated that you wish to terminate the contract. The costs of returning the Products will be borne by you, the Consumer. You are responsible for affixing sufficient postage to the package.

Once ProDiag has received the returned Products, ProDiag will refund the full purchase price, including standard shipping costs, within fourteen days. Repayment will be made in the same currency and by the same means of payment.

If you fail to comply with the conditions set out in this article, the contract cannot be terminated and the purchase price will not be refunded.

Complaints about the delivered Products, and all other correspondence, may be addressed to info@prodiag.nl.

Company data:

ProDiag B.V.

Zandvoortweg 185,

3741 BD Baarn

Annex II – Model withdrawal form

Model withdrawal form

(complete and return this form only if you wish to withdraw from the contract)

  • To:            ProDiag B.V.

Zandvoortweg 185, 3741 BD Baarn

info@prodiag.nl

  • I hereby give notice that I wish to revoke our agreement for the sale and delivery of the following Products: __________________________________________

_______________________________________________________________________

  • Ordered on __________ [date of order] and received on __________ [date of order for services, or date of receipt for Products].
  • Name of Consumer:
  • Address Consumer:
  • Signature (if completed on paper)

GENERAL TERMS AND CONDITIONS FOR CUSTOMERS PRODIAG BV

1. Definitions

Customer:       the natural person or legal entity acting as a company, registered in the trade register and purchasing Products and/or services from ProDiag;

ProDiag:          ProDiag B.V., having its registered office and principal place of business in (3741 BD) Baarn, at Zandvoortweg 185, registered in the Commercial Register of the Chamber of Commerce under number 32096014;

Quotation:       any offer made by ProDiag to perform services or supply Products;

Force majeure: a situation as referred to in article 6 of these terms and conditions;

Product(s):      the products and/or services to be supplied by ProDiag to the Customer, including product documentation, instructions for use and packaging;

Website:          the website of ProDiag https://www.prodiag.nl.

2. General

  1. These general terms and conditions apply exclusively to all agreements and Quotations under the terms of which ProDiag provides services or Products to the Customer. The applicability of other general terms and conditions, of the Customer or of third parties, is excluded.
  2. ProDiag is entitled to engage third parties for the execution of the agreement.
  3. Deviating terms and conditions and amendments and supplements to any provision of the contract are only valid if laid down in writing and signed by both parties.
  4. The term “in writing” with respect to communications between ProDiag and the Customer is also understood to mean electronic communications. ProDiag’s electronic system is deemed to be the only proof of the contents and time of receipt and dispatch of the electronic communication concerned.
  5. Without prior permission, the Customer is not permitted to use the name of ProDiag in any advertisement or publication or to create the impression that there is a collaboration between the Customer and ProDiag, or that the parties are affiliated with each other.
  6. When interpreting the meaning of the general terms and conditions, the Dutch version is authoritative.
  7. Without ProDiag’s prior consent, the Customer may not transfer any rights or obligations under the contract concluded between the parties to a third party. This clause has effect under property law.
  8. No advice provided shall relieve the Customer of its obligation to examine the Products (in each case) for their suitability for the Customer’s intended purposes. The actual application and use of the Products are entirely at the expense and risk of the Customer.
  9. If any provision of these general terms and conditions or the agreement is, for any reason whatsoever, wholly or partially void or voided at any time, the remaining provisions contained herein shall remain in effect. The parties will then negotiate the content of a new provision that approximates the content and purport of the original provision as closely as possible.
  10. Should ProDiag not always require strict compliance with these terms and conditions, this does not mean that the provisions thereof do not apply or that ProDiag has relinquished the right to require strict compliance with these terms and conditions in other cases.

3. Conclusion of the Agreement

  1. Before concluding the agreement, Customer must provide ProDiag with all essential information regarding the Products and Services to be purchased. The Customer guarantees the accuracy and completeness of the information provided by him or on his behalf on which ProDiag bases its offer.
  2. The Customer shall be available to answer questions from ProDiag, the answers to which are necessary for the preparation of the quotation or the performance of the contract.
  3. All ProDiag quotations are without obligation. After acceptance by the Customer, ProDiag is entitled to withdraw its Quotation within five working days.
  4. An agreement is concluded upon ProDiag’s written confirmation of the Customer’s acceptance of an Quotation or by ProDiag’s actual (commencement of the) delivery of the Products or the service offered to the Customer.
  5. Unless expressly indicated otherwise, the dispatch of an invoice does not constitute written confirmation. If no confirmation is sent and there is no question of ProDiag actually delivering or starting to deliver the Products, the agreement is only concluded upon receipt of payment by ProDiag.
  6. If an acceptance of an Quotation deviates from an Quotation, on minor points or otherwise, ProDiag shall not be bound by this deviation and no agreement will be formed unless the deviation is explicitly accepted by ProDiag. If, despite this, a start is made on performing the agreement, the Quotation is binding with regard to the agreements made.
  7. The Quotation contains a complete and accurate description of the Products offered. The description is sufficiently detailed to allow a proper assessment of the offer by the Customer. All photographs are for informational purpose only, and no rights can be derived therefrom.
  8. The Customer cannot rely on obvious typesetting, programming or program errors in/on the Website.

4. Prices and rates

  1. All prices and rates are in EURO, excluding VAT and shipping costs, unless explicitly agreed otherwise. The shipping costs will be communicated prior to the final order.
  2. If the prices and/or rates of price-determining factors of the Product, such as wages, materials, exchange rate differences, transport costs, import duties or insurance rates, undergo an increase for any reason whatsoever, ProDiag will be entitled to change the agreed price accordingly at any time.

5. Delivery time and deadlines

  1. Delivery periods and other deadlines commence on the first working day after conclusion of the contract and are based on the information known at the time of conclusion of the contract and on the prevailing circumstances.
  2. Articles ordered via the Website are in stock, unless indicated otherwise. ProDiag will endeavour to dispatch an order placed on a working day before 12:00 noon that same day. For orders placed between Friday 12:00 noon and Monday 12:00 noon, ProDiag will do its utmost to ship the order on Monday, barring holidays.
  3. If a Product is (temporarily) sold out, the Customer will be informed as soon as possible and offered the possibility to wait until the Product is once again available. If the Customer fails to respond or does not want to wait, the agreement will be terminated by ProDiag and any purchase price already paid will be refunded within thirty days.
  4. Stated or agreed delivery dates and other deadlines are approximate and must never be construed to be a deadline. ProDiag cannot be held liable for any damage resulting from missed delivery dates or other deadlines. Termination is only possible after ProDiag has been given written notice of default by the Customer, whereby ProDiag is given a period of thirty days to fulfil its obligations.
  5. Delivery deadlines and other deadlines will be extended by the time the performance of the agreement is delayed due to Force Majeure, circumstances other than those known to ProDiag, failure to pay or suspension by ProDiag of its obligations.
  6. If the Customer fails to fulfil its payment obligations vis-à-vis ProDiag, or if the Customer has not or not adequately fulfilled its (information) obligations, ProDiag may suspend deliveries.

6. Force Majeure

  1. If ProDiag is prevented from (further) performance of the agreement due to Force Majeure of a permanent or temporary nature, irrespective of whether the Force Majeure could have been foreseen, ProDiag will be entitled, without any obligation to pay damages, to suspend (further) performance of the agreement in full or in part or, at ProDiag’s discretion, to terminate the agreement in full or in part by means of a written notice to that effect and without judicial intervention. Termination does not affect ProDiag’s right to payment by the Customer for any performances already delivered by ProDiag and ProDiag cannot be held liable for compensation in such a situation.
  2. ProDiag shall inform Customer as soon as possible of the Force Majeure. In the event of suspension, as referred to in Article 6.1, ProDiag will still be entitled to terminate the agreement in whole or in part.
  3. Force majeure includes all circumstances that temporarily or permanently prevent ProDiag from fulfilling its obligations, such as fire, frost, strike or lock-out, riots, war, government measures, default of suppliers, electricity failures, computer, telephone and Internet failures, theft or misappropriation of stocks and furthermore all circumstances where ProDiag cannot reasonably be expected to fulfil its obligations vis-à-vis the Customer (any further). Force Majeure on the part of ProDiag’s suppliers is also deemed to be Force Majeure on the part of ProDiag.
  4. If the Force Majeure on the part of ProDiag lasts longer than three months, the Customer is authorised to terminate the part of the agreement that cannot be performed by means of a written statement.

7. Delivery, transport, risk

  1. Delivery of Products will take place by putting them at the Customer’s disposal at the location agreed with the Customer. From that moment on, the Customer shall bear the risk of the storage, loading, transport and unloading of the item. 
  2. Even if it has been agreed that ProDiag will arrange the transport, the risk of, inter alia, the storage, loading, transport and unloading of the item shall rest with the Customer.
  3. ProDiag will have fulfilled its obligation to deliver once it has given the Customer the opportunity to take receipt of the Products at the agreed place and time. Providing an incorrect or incomplete address shall be at the expense and risk of Customer.

8. Accepting Delivery

  1. The Customer has an obligation to cooperate with the delivery, as well as to take delivery of the Products.
  2. If the Customer fails to take delivery of the Products, ProDiag reserves the right to charge the Customer for any related costs (including storage and transport costs).
  3. A delivery is deemed to have been refused if an attempt is made to deliver the Products ordered but delivery proves impossible. The day on which acceptance of the delivery is refused is deemed to be the day of delivery.

9. Inspection and Complaints

  1. The Customer must inspect the Products (including packaging and instructions for use) as fully as possible immediately after delivery and check that they are complete.
  2. Complaints about missing or damaged (parts of) Products, packaging, deviations in size or number or any other deviations from the agreed product specifications that can reasonably be detected during this inspection must be made within fourteen days of delivery, on penalty of forfeiture of all rights.
  3. The Customer no longer has the right to invoke a performance defect if the Customer has not complained about it in writing within twelve months of delivery and within a period of fourteen days of having discovered or should having been able to discover the defect. The complaint must be accompanied by all relevant information to enable the complaint to be properly investigated, such as the date of delivery, the address where the Products were delivered, a detailed description of and the grounds for the complaint and any relevant visual materials. The Customer also has an obligation to keep any defective parts and return them freight-free to ProDiag immediately upon request.

10. Warranty and Customer Claims

  1. With due observance of the provisions elsewhere in these terms and conditions and with the exception of products with a shorter shelf life, ProDiag guarantees the soundness of the products supplied by it for a period of six months after delivery. This means that ProDiag guarantees that the Products meet the technical specifications stated in the agreement or Quotation. If the agreement specifies a guarantee period of any other length, the rest of this article remains unaffected.
  2. ProDiag does not in any way guarantee that the Products sold by it are suitable for the Customer’s intended use of the Products. It is up to the Customer, prior to concluding the Agreement, to investigate whether the Products to be purchased are suitable for the Customer’s intended purposes and use thereof.
  3. If ProDiag delivers a faulty performance, it may choose to deliver the performance again, to supplement the items that have already been delivered or to credit a proportionate part of the purchase price to the Customer.
  4. If ProDiag chooses to deliver the performance again, ProDiag will determine the manner and time of performance. The Customer shall, immediately at ProDiag’s request and in accordance with ProDiag’s instructions, return defective Products to ProDiag at the Customer’s expense.
  5. In the event of a warranty claim, the Customer shall retain the obligation to accept delivery of and pay for any other Products ordered. A (justified) guarantee claim does not entitle the Customer to terminate the agreement.
  6. ProDiag’s warranty obligations under this article do not in any case apply if:
    • a defect results from the fact that ProDiag has received incomplete or incorrect information with regard to the performance of the relevant agreement;
    • a defect results from the fact that the Customer uses the Products in a manner other than in accordance with the agreed or customary use of the Products;
    • changes or repairs have been made to the Products without the prior written consent of ProDiag;
    • the delivered Products have been damaged by external causes;
    • the Customer does not fulfil, or has not fulfilled in a  timely manner, any obligations vis-à-vis ProDiag arising from the underlying agreement.
  7. Transport costs for redelivery of the Products shall be at the expense and risk of the Customer, unless otherwise agreed in writing.
  8. For goods procured by ProDiag from third parties, its obligations vis-à-vis Customer are never greater or longer in duration than the (guarantee) obligations of those third parties vis-à-vis ProDiag. ProDiag will be discharged of its obligations vis-à-vis the Customer as soon as it has transferred its claim on that third party to the Customer.

11. Liability / Indemnification

  1. ProDiag is not liable for any damage suffered by the Customer or third parties arising from an agreement (yet to be concluded) with the Customer, or any other obligation under the law (such as by virtue of unlawful act). This also includes consequential loss, trading loss, loss of savings, damage due to business stagnation or damage as a result of claims from third parties against the Customer.
  2. ProDiag is not liable for any damage caused by acts or omissions by personnel employed by ProDiag or other persons whose services ProDiag uses, including recommendations or advice, except in the case of intent or deliberate recklessness on the part of ProDiag.
  3. The Customer shall refrain from holding ProDiag staff members and parties engaged by ProDiag personally liable in connection with an agreement.
  4. Should ProDiag, notwithstanding the above (according to standards of reasonableness and fairness) be liable to pay compensation, ProDiag’s liability vis-à-vis the Customer, contractually or otherwise, will in any case be limited to the amount paid out by ProDiag’s liability insurance in the case concerned, or, if ProDiag has no claim to this, ProDiag’s liability vis-à-vis the Customer, contractually or otherwise, will in any case be limited to the value of the Products or services purchased by the Customer or (if lower) an amount of EUR 3,000 in total per series of events with one and the same cause.
  5. The Customer must hold ProDiag liable for any damage suffered or to be suffered within one calendar month after the Customer has become aware of or could reasonably have become aware of a harmful event. Failing this, the Customer will no longer be entitled to do so.
  6. Any claim for compensation against ProDiag, except a claim which has been acknowledged by ProDiag, lapses one year after the day on which the Customer has become aware of the damage and ProDiag’s liability.
  7. The Customer shall indemnify ProDiag for any form of liability and for all costs and damage incurred by ProDiag and third parties in connection with the use of the Products in any other way than in accordance with the agreed or customary use of the Products, as well as for any form of liability and for all costs and damage incurred by ProDiag and third parties in connection with the resale of the Products outside the Netherlands.
  8. ProDiag shall under no circumstances be liable for any damage if and to the extent that it results from non-compliance with directions/instructions provided by ProDiag or non-compliance with user, control and/or maintenance requirements of Products by the Customer or third parties.

12. Safety measures and recalls

  1. The Customer has an obligation to cooperate immediately with (measures in connection with) safety warnings, safety checks, and replacement of the Products for safety reasons.
  2. The Customer also has an obligation to cooperate immediately with a Product recall initiated by ProDiag.
  3. Any damage or costs incurred by the Customer in connection with the provisions of this article will be compensated up to the amount of the invoice value of the Products originally delivered or, as the case may be, the Products recalled, as charged by ProDiag. No loss of turnover or profit on the part of Customer will be compensated.

13. Hallmarks, intellectual and industrial property rights

  1. All rights to the registered Products supplied by ProDiag, including intellectual property rights, are vested exclusively in ProDiag or its licensors. The sale and delivery of the Products to the Customer does not create any rights in respect of the rights in question.
  2. The Customer is not allowed to copy, store, publish, reproduce or otherwise use text and/or visual materials from the Website without the explicit permission of ProDiag.
  3. The Customer is not permitted to remove or alter (quality) marks of any kind, such as CE marking, trade names, patents or other rights arising from the Products supplied by ProDiag.
  4. The Customer shall not remove or render invisible or illegible any identifying marks affixed to the Products, either in whole or in part.

14. Invoicing and payment

  1. In the event of an order placed via the Website, the purchase price must be paid in advance by means of one of the payment options available on the Website. You may choose to pay in advance by bank transfer or iDEAL, or afterwards by credit card. We accept MasterCard and Visa. The credit card will not be charged until the package has been shipped.
  2. If payment in advance is chosen, the agreement is concluded under the suspensive condition of receipt of payment. This means that the order will not be dispatched until payment has been received by ProDiag. If payment is not received within seven days, the Customer will be sent a reminder. If payment is again not received within seven days, ProDiag is entitled to terminate the agreement with immediate effect. When paying by bank transfer the Customer must clearly state the order number with the payment, taking heed of the time that the banks will need to process the transfer.
  3. In all other cases, the Customer must pay the total amount stated on the invoice, including VAT, within thirty days of the invoice date, unless otherwise agreed in writing. The Customer is not entitled to suspend its payment obligations.
  4. Net payment must be made to the ProDiag bank account designated by ProDiag, without any discount, deduction or set-off. The value date indicated on ProDiag’s bank statements will be regarded as the day of payment.
  5. If the Customer has not paid the full amount due within the agreed payment term, the Customer will be in default by operation of law, without any notice of default being required. From the day the Customer is in default until the day of full payment, the Customer will owe statutory commercial interest as referred to in Article 6:119a of the Dutch Civil Code.
  6. All costs of collection of the amounts owed by the Customer, both judicial and extrajudicial, shall be for the Customer’s account. These include, among other things, the costs of seizure, bankruptcy petitions, collection costs, as well as the costs of lawyers, bailiffs and other experts ProDiag has engaged. The extra-judicial collection costs to be incurred by ProDiag – including those incurred in the context of penalty proceedings – amount to at least 15% of the total amount owed by the Customer to ProDiag, with a minimum of EUR 750 plus VAT, without prejudice to ProDiag’s right to full compensation for damages and costs incurred in collecting the amounts owed.
  7. On pain of forfeiture of all rights, the Customer must have submitted any complaints concerning invoices to ProDiag in writing within fourteen days of the invoice date, failing which the invoices in question will be deemed to have been accepted and approved by the Customer, and complaints in this regard will no longer be accepted.
  8. ProDiag is entitled to invoice agreements that are performed in separate consignments, per consignment.
  9. ProDiag is entitled to set off its debts to the Customer against claims of companies affiliated with ProDiag against the Customer. In addition, ProDiag is entitled to set off its debts to the Customer against the debts of ProDiag-affiliated companies to the Customer. Furthermore, ProDiag is entitled to set off its debts to the Customer against claims on companies affiliated with the Customer. Affiliated companies are defined as: all companies belonging to the same group, in the sense of Article 2:24b of the Dutch Civil Code, and participations, in the sense of Article 2:24c of the Dutch Civil Code.

15. Retention of title and other securities

  1. The Products supplied by ProDiag remain its property until such time as the Customer has fulfilled all its obligations under the agreement, including claims based on breach of contract (such as interest, costs, and penalties), all this as referred to in Article 3:92 of the Dutch Civil Code. The Customer will not have any right of retention with respect to these Products.
  2. The Products may not be resold, used or encumbered with any security right by the Customer, except in the context of its usual business operations, as long as they are subject to retention of title.
  3. The retention of title will revive in the situation that the Customer has fulfilled all its obligations at any point in time, but new obligations arise for the Customer by virtue of a new agreement.
  4. With regard to all Products subject to ProDiag’s retention of title, the Customer has an obligation to exercise all due care customary in society, to provide ProDiag with access to those goods, and to inform ProDiag immediately in writing of any third-party action which is or may be related to the Products supplied in a manner detrimental to ProDiag.
  5. ProDiag is entitled to repossess or have repossessed Products delivered to the Customer which remain the property of ProDiag in the event that the Customer fails to fulfil its obligations or ProDiag has reason to believe that the Customer will fail to fulfil its payment obligations. The Customer has an obligation to facilitate this repossession. The costs associated with repossessing the Products shall be borne by the Customer. If the Products are repossessed, the Customer will be credited on the basis of the invoice value or, in the event of damage to the Products, on the basis of their fair market value.
  6. The Customer has an obligation to alert third parties (such as trustees and distraint collectors who claim any rights in respect of the Products to which ProDiag retains title) to ProDiag’s retention of title. In the aforementioned case, the Customer must inform ProDiag immediately hereof in writing, by letter and by e-mail.
  7. Irrespective of the agreed payment conditions, the Customer has an obligation (in each case), immediately at ProDiag request, to provide further security for the fulfilment of its obligations to ProDiag. The security may consist of, inter alia, providing a bank guarantee or advance payment of the sum amounts indicated by ProDiag. ProDiag will not owe interest on any advance payments. If the Customer fails to make such payment within the period set by ProDiag, the Customer will be immediately in default.

16. Attributable failure and dissolution by ProDiag

  1. The Customer is deemed to be in default by operation of law and the Customer’s (remaining) debt vis-à-vis ProDiag will be immediately due and payable in the event that:
    • the Customer files for bankruptcy, is declared bankrupt or files for a suspension of payments; or
    • a resolution is passed and/or a decision is made to wind up the Customer or to terminate the business activities of the Customer, or to sell the business activities of the Customer, or the nature of the business activities of the Customer changes substantially in the opinion of ProDiag; or
    • the Customer does not fulfil or does not fully fulfil any obligations vis-à-vis ProDiag by force of law or contractual conditions; or
    • the Customer fails to pay an invoice amount due to ProDiag within the stipulated period; or
    • all or part of the Customer’s assets are seized; or
    • a director of the Customer is disqualified under civil law; or
    • a situation comparable to those listed at a through f arises under the laws of the Customer’s country of residence,
  2. In the situations described in Article 16.1, ProDiag will be entitled to suspend its obligations or to terminate the agreement in full or in part with immediate effect and without judicial intervention, all this without prejudice to ProDiag’s other rights, such as rights to penalties already due, interest, and the right to compensation.
  3. ProDiag shall have no obligation to pay any compensation to the Customer in the event of termination of the agreement in accordance with the provisions of this Article.
  4. Upon termination of the agreement, provisions that by their nature are meant  to continue will remain in force.
  5. In the event of termination, ProDiag is entitled to repossess the Products, free of all rights of the Customer. In such a case, ProDiag and its authorised representative(s) are entitled to enter the grounds/premises of the Customer in order to take possession of the Products. The Customer has an obligation to cooperate and take the necessary measures to enable ProDiag to enforce its rights.

17. Amendments

ProDiag is entitled to amend the Agreement, including the prices stated therein and these General Terms and Conditions. The Customer will be deemed to have accepted the amendments in question in the event that ProDiag has not received a written protest from the Customer within fourteen days of ProDiag having informed the Customer that an amendment is to be made.

18. Applicable law and competent court

  1. All agreements concluded between the parties are governed by Dutch law.
  2. The Vienna Convention on Contracts for the International Sale of Goods does not apply.
  3. Any disputes in connection with or arising from an agreement will, in the first instance, be submitted exclusively to the competent court in Utrecht, without prejudice to ProDiag’s right to submit a dispute to another court authorised by law or convention.

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Drawn up on 26 March 2020